Tanvi Agarwal, West Bengal National University of Juridical Sciences
ABSTRACT
Marriage is regarded as an essential institution of the society whereby two individuals are bonded by ties of love, loyalty and commitment to each other. Be that as it may, the reality that sets in after marriage is drastically different. The husband and wife who are equal in standing on paper and have their own set of rights are now differentiated on several grounds.
Certain cultures reinforce the assumed set of roles assigned for the husband and wife where the husband is regarded as the breadwinner of the family and the wife’s primary role is restricted to caregiving and looking after the household. This categorization places the husband in a higher position in the patriarchal hierarchy than the wife, further widening the inequality gap between the two. It eventually gives birth to various assumptions like that the wife’s opinion is irrelevant in the decisions of the household and her consent is assumed during sexual intercourse. This suppressed position of the wife and lack of recognizing the need for her consent during sexual intercourse has not led to the criminalization of the offence of marital rape.
The purpose of the paper is to analyze the idea of consent in marital rape. The paper aims to critically examine this by analyzing the deeply embedded notions of patriarchy and how it influences the concept of marriage in the modern-day world. The paper will delve into the importance of consent in matrimonial law and examine the need to criminalize marital rape under the Indian Penal Code. In part II of the paper, we will explore the historical context in which the provisions of rape were defined in India and their developments in the modern-day context. Part III of the paper will delve into the importance of consent in matrimonial law and during sexual intercourse in matrimony. In contrast, Part IV will analyze the need to acknowledge consent and criminalize marital rape. In Part V, the paper will be concluded by providing suggestions about the same.
